TNPX and Secretary, Department of Social Services (Social services second review)
[2020] AATA 3729
•23 September 2020
TNPX and Secretary, Department of Social Services (Social services second review) [2020] AATA 3729 (23 September 2020)
Division:GENERAL DIVISION
File Number:2020/2743
Re:TNPX
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:23 September 2020
Place:Brisbane
The application for reinstatement is refused.
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Member D Mitchell
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement of Application for Extension of Time for Making an Application for Review of Decision – application dismissed due to Applicant’s failure to appear at the scheduled interlocutory hearing to consider the application – application for reinstatement refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2014] AATA 99
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Confidential and Child Support Registrar [2010] AATA 577
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Serpinli v Secretary, Department of Social Services [2019] FCA 2029
Somba v Minister for Home Affairs (No 2) [2018] FCA 1537
Somba v Minister for Home Affairs [2018] FCA 1022
Somba v Minister for Home Affairs [2019] FCAFC 150
Somba and Minister for Home Affairs (Migration) [2020] AATA 425
Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626REASONS FOR DECISION
Member D Mitchell
23 September 2020
BACKGROUND
On 27 June 2018, TNPX (the Applicant) lodged a claim for the disability support pension (DSP) listing her conditions as: “Scoliosis, Long term fractured feet, Thyroid issues, Knees, Arthritis (in back, neck, fingers and wrists), Broken and unhealed collar bone, Heart Murmur, Meningitis, Anxiety and Depression.”[1]
[1] Secretary’s Outline of Submissions, paragraph 5.
On 9 July 2018, the Applicant’s claim for DSP was rejected.[2] This decision was affirmed by an Authorised Review Officer (ARO) on 13 December 2018 on the basis that the Applicant did not have any permanent conditions and therefore did not have an impairment rating of at least 20 points or more under the Impairment Tables.[3]
[2] Attachment to Secretary’s Outline of Submissions, Attachment B, pages 5-6, Centrelink Notice: Rejection of your claim for Disability Support Pension.
[3] Attachment to Secretary’s Outline of Submissions, Attachment C, pages 7-13, Decision and Notes of Authorised Review Officer.
The Applicant sought review of the decision by the Social Services and Child Support Division (SSCSD) of this Tribunal. On 29 April 2019, the SSCSD affirmed the decision to refuse the Applicant’s claim for DSP.[4] Based on the evidence before it, the SSCSD found that the Applicant’s:[5]
(a)Mental Health Condition could not be considered fully treated and stabilised for DSP purposes and as such an impairment rating could not be assigned.
(b)Spinal Condition had not been fully investigated, treated and stabilised and as such an impairment rating could not be assigned.
(c)Lower Limb Conditions were not fully diagnosed, treated and stabilised and as such an impairment rating could not be assigned.
(d)Thyroid issues could not be assigned a rating higher than 0 points under Table 8 (communication function) or Table 1 (exertion and stamina).
[4] Attachment to Secretary’s Outline of Submissions, Attachment A, pages 1-4, Decision of the SSCSD.
[5] Attachment to Secretary’s Outline of Submissions, Attachment A, pages 1-4, Decision of the SSCSD.
The SSCSD decision was posted to the Applicant under a cover letter dated 7 May 2019. The cover letter provided:[6]
You may apply to the AAT for second review of the decision. Information about how to apply is available at or by calling us on 1800 228 333.
There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).
[6] Attachment to Secretary’s Outline of Submissions, Attachment D, page 14, Notice of AAT’s Decision (covering letter to SSCSD Decision).
On 6 May 2020, the Applicant lodged an Application for Extension of Time for Making an Application for Review of Decision (EOT Application) with the General Division of this Tribunal in relation to her intention to seek review of the SSCSD decision.[7] The Applicant outlined that her reason for seeking an extension of time to make an application for review of the decision was:[8]
Due to the decision maker disregarding my condition, I have fallen further into a more crippling state where at times I cannot walk, also I am suffering sever episodes of vertigo also disabling me from functioning everyday living leaving me bedridden, unable to visibly see in front of me correctly and always nauseated.
I have had to push myself in order to have this decision appealed due to the lack of consideration of my condition.
[7] Attachment to Secretary’s Outline of Submissions, Attachment E, pages 15-18, Emails from the Applicant attaching Application for Extension of Time for Making an Application for Review of Decision.
[8] Attachment to Secretary’s Outline of Submissions, Attachment E, page 18, Emails from the Applicant attaching Application for Extension of Time for Making an Application for Review of Decision.
APPLICATION PROCESS
A telephone interlocutory hearing was convened to consider the Applicant’s EOT Application on 3 June 2020. Having been unable to contact the Applicant at the time of the telephone interlocutory hearing and being satisfied that the Applicant was aware the hearing was to take place at the listed date and time, the Tribunal dismissed the application pursuant to section 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[9]
[9] Attachment to Secretary’s Outline of Submissions, Attachment G, pages 20-21, Dismissal of the Applicant’s Extension of Time Application.
Notification of that decision was emailed to the Applicant on 3 June 2020. On 29 June 2020, the Applicant by return email apologised for not being able to take the call. The Applicant wrote:[10]
I have suffered severe vertigo and still have it going on now as I type this, only not as bad as at the beginning of the month.
I wish to continue with this as it is very important to me.
Unfortunately I have no control over the debilitating part of my health and at times I am unable to function as I do not have any care provided to me, this is what centrelink fails to also recognise, instead labelling me as there is nothing wrong with me according to their decision.
I would appreciate going forward with this please.
[10] Attachment to Secretary’s Outline of Submissions, Attachment H, page 22, Applicant’s Request for Reinstatement.
The Applicant’s email was taken to be a request to have her application reinstated pursuant to section 42A(8A) of the AAT Act. Subsequently, the Applicant and Respondent were given the opportunity to make submissions and a telephone interlocutory hearing was convened on 17 August 2020 to consider the matter.
At the telephone interlocutory hearing on 17 August 2020, the Respondent submitted that it did not oppose the Applicant’s reinstatement request on the basis that it considers that there may be contention in relation to dismissing an EOT Application pursuant to section 42A(2) of the AAT Act.[11] The Respondent submitted that it did however maintain its objection to the granting of an extension of time for the Applicant to make an Application for Review of Decision and sought to rely on the submissions it had filed on 14 July 2020.
[11] The Respondent referred the Tribunal to the decisions of Deputy President Forgie in Confidential and Child Support Registrar [2010] AATA 577 and Deputy President Constance in Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2014] AATA 99.
The Applicant advised the Tribunal that she had not received the submission made by the Respondent and had not understood the purpose of the telephone interlocutory hearing. The Tribunal adjourned the hearing to provide the Applicant with the opportunity to receive and review the Respondent’s submissions and prepare herself to discuss her request for reinstatement. The Tribunal emailed the Respondent’s submissions to the Applicant and scheduled a resumed telephone interlocutory hearing for 8 September 2020.
A resumed telephone interlocutory hearing was conducted on 8 September 2020. Both the Applicant and Respondent appeared by telephone and were provided with the opportunity to make oral submissions. The Applicant confirmed she had received and read the Respondent’s written submissions.
All relevant information before the Tribunal was provided as part of an Attachment to the Respondent’s Outline of Submissions and Attachments filed with the Tribunal on 14 July 2020.[12]
[12] Secretary’s Outline of Submissions and Attachment to Secretary’s Outline of Submissions.
The issue before the Tribunal is whether or not the Applicant’s request to have her EOT Application reinstated should be granted. The question the Tribunal must consider is whether it is appropriate to reinstate the application.[13]
[13] Serpinli v Secretary, Department of Social Services [2019] FCA 2029 at [24].
Pursuant to section 42A(9) of the AAT Act the Tribunal does not consider it appropriate to reinstate the application for the reasons set out below.
REASONS FOR DECISION
The Tribunal does not accept the Respondent’s submission that Applicant’s EOT Application should be reinstated on the basis that there is uncertainty as to whether an EOT Application can be dismissed pursuant to section 42A(2) of the AAT Act. The Tribunal has considered the decision of Deputy President Forgie in Confidential and Child Support Registrar [2010] AATA 577 and that of Deputy President Constance in Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2014] AATA 99 which were sighted by the Respondent. This Tribunal prefers the approach taken to this issue by Deputy President Constance in Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2014] AATA 99. It is noted that Deputy President Constance applied his statutory construction in Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626, which was not displaced by the Federal and Full Federal Courts[14] or by Deputy President Boyle in Somba and Minister for Home Affairs (Migration) [2020] AATA 425 throughout the appeal process.
[14] Somba v Minister for Home Affairs (No 2) [2018] FCA 1537; Somba v Minister for Home Affairs [2018] FCA 1022; Somba v Minister for Home Affairs [2019] FCAFC 150.
Section 42A(9) of the AAT Act provides the Tribunal with the power to reinstate an application that is dismissed under section 42A(2) of the Act in circumstances where it considers it appropriate to do so. The discretion in section 42A(9) of the AAT Act is broad and a number of different approaches have been taken by the Tribunal in relation to the factors that should be taken into consideration when exercising the discretion This Tribunal considers it appropriate to follow the approach outlined by Justice O’Callaghan in Serpinli v Secretary, Department of Social Services [2019] FCA 2029 at [25] and [26]:
25. At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not “it’s appropriate that [the applicant’s] case be reinstated”. The Tribunal said that in doing so it needed to consider: whether the applicant had reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.
26. In considering whether to reinstate the application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for failure to appear at the hearing, the explanation for it.
Explanation for failure to appear
The Applicant’s explanation for failing to appear at the telephone interlocutory hearing on 3 June 2020 was that she was unwell and unable to take the call. The Tribunal does not have any supporting evidence before it in relation to the Applicant’s health at that particular time however has no reason to doubt the Applicant’s explanation.
While the Applicant’s reasons for failing to appear may be reasonable, especially in circumstances of a person who is applying for the DSP, it is not the only relevant consideration in determining whether it would be appropriate to reinstate the dismissed application.
Merits of the substantive application
In considering the merits of the substantive application, the Tribunal notes that the dismissed application was an EOT Application and that no actual Application for Review of a Decision had yet been made by the Applicant. As such the Tribunal considers it reasonable in this instance to consider the prospects of success of the EOT Application. This requires consideration of the likelihood that the EOT Application would have been granted.
The Tribunal notes that it asked the Applicant at the resumed interlocutory hearing whether she had read and understood the Respondent’s submissions and whether she would like to provide oral submissions to the Tribunal. The Applicant indicated she had read the Respondent’s submissions and told the Tribunal that she was angry, as in her opinion every case should be considered on a case by case basis so she should not be compared to anyone else. The Applicant said she was upset with the Respondent and that the decision had been fabricated, she is ill at home and her conditions have deteriorated.
Section 29(2) of the AAT Act outlines that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal if it is satisfied that it is reasonable in all the circumstances to extend the time for the applicant to make an application for review of a decision.
In considering an Application for an Extension of Time to lodge an Application for Review of a decision, it is accepted that generally the Tribunal will have regard to the principles set out by the Federal Court in of Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 (Hunter Valley). Those principles include the length of delay in making an application, explanation for the delay and awareness of the review rights, prospects of success and alternative avenues for relief. Each factor will be considered in turn.
Length of Delay
In relation to the length of delay, the SSCSD decision was posted to the Applicant on 7 May 2019. The Applicant provided in her EOT Application that she received the decision on 20 May 2019.[15] As such an application for review should have been made on or before 17 June 2019. The Applicant has on 6 May 2020 sought an extension of time to make such an application until 19 May 2020 a delay of approximately 11 months. The Tribunal considers this to be a substantial delay in this matter. This weighs against the granting of an extension of time to make an application for review of a decision.
Explanation for delay and awareness of appeal rights
[15] Attachment to Secretary’s Outline of Submissions, Attachment E, pages 15-18, Emails from the Applicant attaching Application for Extension of Time for Making an Application for Review of Decision.
As outlined in paragraph 5 above, the Applicant’s reasons for requesting an extension of time to make an application for review of a decision was due to her being unwell.
At the resumed telephone interlocutory hearing the Applicant confirmed she received the cover letter and decision from the SSCSD and that while she knew there was a timeframe in which to seek further review, at the time she was very stressed and her conditions deteriorated. The Applicant told the Tribunal that she suffers from vertigo and this means that she can sometimes be out of action for months. The Applicant also made reference to making contact with the Tribunal seeking that application forms be sent to her as being a contributing factor to the delay in making her application. The Applicant was however unable to tell the Tribunal of the date on which such contact was made.
The Respondent submitted that the Applicant’s reasons for delay in making an application for review are unsatisfactory. The Respondent contended that it is likely that many applicants will be unwell, particularly those who have applied for DSP, however as a large number of those applicants are able to meet the statutory time limits in relation to lodging appeals to the Tribunal it would be unfair to those applicants and potential applicants in the discretion to extend time was exercised in this case.[16]
[16] Secretary’s Outline of Submissions, paragraph 24.
The Tribunal accepts that the Applicant is unwell and that this contributed to her delay in requesting a review of the SSCSD decision, however does not consider her explanation to be reasonable given the quantum of the delay. The Applicant has not provided any medical evidence in support of her submission that her conditions prevented her from making an application for review within time, or at any earlier point in time. Further, the Tribunal notes that the Applicant was able to make the application for reinstatement of the dismissed application currently in question within the prescribed 28 day timeframe despite her reason for not appearing at the 3 June 2020 telephone interlocutory hearing being due to her poor health.
The Tribunal observes that Parliament has provided in legislation a 28 day time limit to indicate the need for finality in decision‑making. The Tribunal is satisfied that the Applicant had been aware of her review rights and is not satisfied that the Applicant’s explanation for the delay in lodging her application for review is reasonable. This weighs against the granting of an extension of time to make an application for review of a decision.
Prospects of success
In order to succeed in her application for DSP,[17] noting that the relevant period to which the Tribunal would be limited to having regard is between 27 June 2018 and 27 September 2018,[18] the Applicant would need to establish that her impairments attracted 20 points or more under the Impairment Tables[19] and that she had a continuing inability to work.[20]
[17] The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
[18] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act provide that qualification for DSP and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim.
[19] Section 94(1)(b) of the Act.
[20] Section 94(1)(c) of the Act.
For an impairment to be assigned a rating under the Impairment Tables it must be considered permanent.[21] Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[22] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[21] Section 6(3) of the Determination.
[22] Sections 6(3) and (4) of the Determination.
As set out above at paragraphs 2 and 3, neither the ARO nor SSCSD found that any of the Applicant’s conditions could be considered to be permanent or assigned an impairment rating under the Impairment Tables.
In considering the merits of the Applicant’s Application for Review of a Decision and potential prospects of success, should the extension of time be granted, it is not appropriate for the Tribunal to embark on a substantive hearing,[23] so as such, at this stage, it cannot be said that the Applicant’s application has no prospects for success at all. However, on the face of the material before the Tribunal, and in the absence of any new relevant evidence, the Tribunal considers that the proposed application appears to have limited prospects of success.
[23] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 at [29] and [38].
The Applicant was asked whether she had further medical evidence, relevant to her claim for DSP that she would seek to be considered. The Applicant told the Tribunal that she has since the SSCSD decision seen specialists, engaged with the NDIS, always seen a psychologist and is limited to treatment based on that available under her care plan. The Applicant reiterated that her conditions were deteriorating.
The Applicant did not elaborate on what particular further medical evidence she may have wanted to provide and appeared to the Tribunal to be fixated on the current status and progression of her conditions rather than focusing on the relevant period within which her claim for DSP made on 27 June 2018 could be considered.
The Respondent accepted that it cannot at this stage be said that the Applicant’s proposed appeal has no prospect of success, however contended that on the face of the SSCSD decision the proposed appeal does not disclose a particularly strong case.[24]
[24] Secretary’s Outline of Submissions, paragraph 29.
The prospects of success of the Applicant’s potential application for review of the SSCSD decision before this Tribunal appear to be very limited based on the facts that are currently before the Tribunal. This weighs against the granting of an extension of time to make an application for review of a decision.
Alternative avenues of relief
The Respondent contended that if the Applicant’s circumstances have changed, for example she has received further treatment and/or her conditions have deteriorated, it is open for her to retest her eligibility by lodging a new claim for DSP.[25] The Respondent noted that the Applicant made reference to vertigo and vision issues in her EOT Application which were not detailed in her original claim form.[26]
[25] Secretary’s Outline of Submissions, paragraph 33.
[26] Secretary’s Outline of Submissions, paragraph 34.
The Respondent submitted that as the appeal period has expired and the Applicant’s current application for review has no realistic prospects of success, the avenue of a new claim should be pursued rather than an extension of time being granted.[27]
[27] Secretary’s Outline of Submissions, paragraph 35.
The Applicant told the Tribunal that she would be making a new claim for DSP.
In the present circumstances, the Tribunal is satisfied that an alternative avenue of relief is available to the Applicant in relation to having her medical conditions and ability to work or undertake training assessed. As such refusal to grant an extension of time to make an application for review would not extinguish her future ability to seek income support or the Applicant’s ability to make a further claim for DSP. This weighs against the granting of an extension of time to make an application for review of a decision.
Conclusion on EOT Application
Based on the consideration of the Hunter Valley principles, the Tribunal considers that had it been required to determine whether to grant the Applicant’s EOT Application, each factor weighed against the granting of an extension of time to make an Application for Review of a Decision. As such the Applicant’s EOT Application had no prospects of success.
Consequently, the Tribunal finds that based on the above discussion it is not satisfied that it would be reasonable to reinstate the Applicant’s EOT Application. The Tribunal considers that the Applicant’s explanation for failing to attend the initial telephone interlocutory hearing was not persuasive given that her substantive EOT Application had no prospects of success.
DECISION
Accordingly, the Applicant’s application for reinstatement of her EOT Application is refused.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
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Associate
Dated: 23 September 2020
Date of hearing: 8 September 2020 Applicant: By phone Advocate for the Respondent: By phone, Samuel Harvey Solicitors for the Respondent: Services Australia
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